In “Chicken Heart,” the most famous episode of Arch Oboler’s 1930s radio series, “Lights Out,” scientists in Chicago keep a chicken’s heart alive indefinitely—but when a careless lab visitor breaks open the heart’s container, the heart begins to spread … and spread … and spread.
“For some reason I cannot even imagine, this tissue is doubling in size every hour,” one savant tells the authorities. “Do you know what that means? In another hour it will be twice the size it is now, and long before that it will break open the building with the force of its pressure. And then it will be free in the streets—do you hear me, free in the streets! And then those tentacles of protoplasm stretching out to feed on anything they can reach …”
As of this writing, Chicago has not been eaten. But in the last few years, the First Amendment has become a kind of constitutional chicken heart, spreading its tentacles into new areas, growing and growing until it crowds out other areas of the law.
In First Amendment matters, I am not chicken livered—man and boy, as editor and scholar, I have been arguing for free speech, free press, and free exercise for nearly 50 years. But the current Supreme Court has taken to rechristening entire areas of the law as First Amendment territory. The new “First Amendment” is zigzagging through the streets of the law in unpredictable fashion. For example, it protects corporate management’s political use of shareholder funds, without regard to the shareholders’ wishes—even though it will likely soon forbid unions’ use of workers’ fees to support actual collective bargaining. It is destroying any limit, no matter how modest, on concentrated wealth in politics. It now empowers drug salespeople to demand practice information on doctors who’d prefer to keep it private; it limits modest state regulations on the posting of correct retail prices.